Roman Law

Roman Law : primarily, the body of rules which governed the city of Rome and its citizens.

A Roman Court of Justice
  Roman Court of Justice

As the power of Rome grew, this system of law was extended over a large part of Italy, but it was not generally introduced into other territories nor made applicable to Rome's subjects as distinguished from her citizens. For the conquered provinces and their inhabitants a different body of rules was worked out. This new law was only in small part a further development of the law of the city; in the main it was a distinct and superior system. It was based on the customs of the various Mediterranean peoples, and representatives of nearly all those peoples ultimately played some part in its development. During the imperial period these two systems were gradually fused into one, and in the codification of Emperor Justinian they are presented as a single and substantially homogeneous body of law.

Much of the Roman law has only an historical interest. This is the case with the older law of the city as a whole; this is the case also with the public law of the empire. On the other hand, the principles governing private relations, which were worked out in the later republic and the early empire and which were incorporated with little change in the law-books of Emperor Justinian, have more than an historical significance—they are to-day a living force. It was in large part on the basis of the Roman law that the mediaeval Church worked out for all Christendom its law of family and of testament. Toward the close of the Middle Ages the law-books of Emperor Justinian, as modified by the Roman canon law, became the chief basis of adjudication in the secular courts of continental Europe, and in the so-called "modern Roman law " Europe obtained a body of substantially uniform rules for property and obligations. The principles of the Roman law have not exercised a controlling influence upon the English common law; but in all modern states, except those founded by Englishmen, the existing law is based on Roman conceptions of private right, reveals in its form the influence of Roman legal science, and expresses itself in Roman terms. The modern civil codes of Europe and of Central and South America are Roman in much the same sense in which the existing law of the self-governing British colonies and of the U. S. is English ; and in this sense the Roman law and the English law are the two great systems that rule the modern civilized world.

1. THE LAW OF THE CITY (Jus Civile).—According to one tradition the city was governed during the first three centuries of its existence (i. e. during the royal period and the first half-century of the republic) by unwritten custom.

According to another tradition the earliest laws were royal enactments. A considerable body of ancient rules, described as royal laws (leges regiae), existed and were collected in the republican period. Many of these have come down to us, and it is evident that they are simply rules of early custom, similar to those which prevailed among other Aryan peoples. Precepts of a religious or moral nature are blended with rules of a legal character. Their formulation suggests a strong sacerdotal influence—an assumption which is corroborated by other Roman traditions.

The Twelve Tables.—Early in the republican period the Plebeians complained that the ancient customs of the city were misinterpreted by the patrician priests and misapplied by the patrician magistrates. They therefore demanded that the law be reduced to writing and enacted in statutory form. In compliance with this demand the law of the Twelve Tables was drafted by a commission of ten elected for the purpose, and was approved by the popular assembly (451 and 450 B. c.). Much of this early code has come down to us. It is clearly nothing but a compilation of the older customary law. It differs from the so-called royal laws in that it contains fewer religious precepts and gives a clearer formulation of personal and property rights. It was regarded by the Romans as the great charter of their liberties. As late as Cicero's time Roman schoolboys learned its text by heart; and during the greater part of the republican period it was practically impossible to secure the adoption of any law which directly and overtly abrogated or changed the provisions of the Tables.

The Republican Jurists.—Under these circumstances the development of the law was accomplished mainly by interpretation. The scanty and rude provisions of the Twelve Tables were supplemented and modified by a free use of analogy and of fiction. For nearly two centuries after the enactment of the Twelve Tables the priests of the pontifical college controlled the forms of pleading and retained a practically exclusive power of interpreting the law; and it was not until the Plebeians had forced their way into this last stronghold of the conservative party (300-254 B. c.) that Roman jurisprudence was secularized. Thenceforward the Roman who wished to study the great body of rules that had grown up around the Twelve Tables was no longer forced to seek an election as pontifex; he placed himself under the instruction of some older jurist. The knowledge of the law was not treated as a means of gaining a living; legal advice was given gratuitously. Next to conspicuous service in war the knowledge of the law furnished the ambitious Roman with the best opportunity of recommending himself to the favor and the suffrages of his fellow citizens. The jurists did not plead cases; this was the business of the orators. They did not directly decide cases unless they happened to be elected judges or appointed referees (judices); but in a doubtful case the opinion of some eminent jurist was brought to the referee or was solicited by him, and such an opinion was regularly conclusive.

Character of the Jus Civile.—The civil law of the republic presents many interesting analogies to the older common law of England. It was essentially a body of case law, shaped by decisions. It was very strict and very formal, certainty of law being held in higher regard than equity. It was very technical, but nearly all its technical distinctions were based upon sound principles. The great advance which the Roman civil law represents in universal history is found (1) in the unprecedented clearness with which private rights were marked out and the extent to which the individual was permitted to shape his own legal relations ; and (2) in the separation of law and religion. This last step was one which no Asiatic or European people had previously taken.

2. THE LAW OF THE ANCIENT WORLD (Jus Gentium).— With the extension of Roman rule over the Mediterranean basin, legal problems were presented which could not be solved by the law of the city. The protection of the civil law could be accorded to aliens only through interstate treaties, and the conquered provincials (as distinguished from the favored allies of Rome) were not merely aliens— they were stateless aliens. The states of which they had been citizens had been destroyed by war. They themselves were simply subjects of Rome. In theory they were the slaves of the Roman people, and their property belonged to the republic. In fact, they were treated as freemen, and it was necessary to administer justice to them.

A more serious difficulty lay in the inadequacy of the city law to meet the needs of the new empire. The Roman civil law had been worked out by and for a people whose chief Continued ....

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